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Congress Strikes Down FCC Privacy Rules

On April 3, 2017, President Donald Trump signed a joint congressional resolution disapproving of the Federal Communications Commission's (FCC) broadband privacy rules. The President's signature completed an almost month long process by which Congress, through the Congressional Review Act (CRA), repealed the broadband privacy rules that were adopted by the outgoing Obama administration in October of 2016. The final result of this action is the continuance of the status quo that has existed since the 2015 Open Internet Order reclassified broadband internet service providers (ISP) as common carriers under the Communications Act (Act).

When the FCC reclassified ISPs as common carriers in 2015, it also swept those entities into the coverage of the privacy provisions of the Act in Section 222. Because the language of Section 222 and its implementing regulations was designed to apply to telecommunications carriers (not the provision of broadband services), the FCC stated that it would consider new rules specific to ISPs and that ISPs should exhibit reasonable, good faith steps to protect consumer privacy in the interim. The FCC's final set of privacy rules were adopted on October 27, 2016, by a party line vote of the Commissioners.

Then-FCC Chairman Tom Wheeler stated that the final rules aligned with the Federal Trade Commission's privacy framework, which governed ISPs before their reclassification by the FCC. However, ISPs and other industry groups noted significant differences between the two frameworks, such as the treatment of all web browsing and app use history data as "sensitive information" requiring consumer consent for use in advertising. Industry groups filed several petitions for the FCC to reconsider the rules.

While those petitions were pending, Congress took action through the CRA. Senator Jeff Flake (R-AZ) and Congressman Marsha Blackburn (R-TN) introduced identical resolutions in the Senate and House respectively disapproving the rules. When the Senate resolution was eventually passed and signed by the President, the FCC's rules were repealed and the agency was barred from issuing "substantially similar" rules in the future.

Compare jurisdictions: Telecoms

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